763.72/1551
The Counselor for the Department of State (Lansing) to the Secretary of State
Dear Mr. Secretary: The difficulty of determining action upon the British and French declarations of intended retaliation upon commerce with Germany45 is the nature of the proposed measures in their relation to commerce by neutrals.
While it appears that the intention is to interfere with and take into custody all ships both outgoing and incoming, trading with Germany, which is in effect a blockade of German ports, the rule of blockade that a ship attempting to enter or leave a German port regardless of the character of its cargo, may be condemned, is not asserted.
The language of the declaration is “the British and French Governments will therefore hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership or origin. It is not intended to confiscate such vessel[s] or cargoes unless they would otherwise be liable to condemnation.”
The first sentence claims a right pertaining only to a state of blockade. The last sentence proposes a treatment of ships and cargoes as if no blockade existed. The two together present a proposed course of action previously unknown to international law.
As a consequence neutrals have no standard by which to measure their rights or to avoid danger to their ships and cargoes. The paradoxical situation thus created should be changed and the declaring powers ought to assert whether they rely upon the rules governing a blockade or the rules applicable when no blockade exists.
The declaration presents other perplexities.
The last sentence quoted indicates that the rules of contraband are to be applied to cargoes detained. The rule covering non-contraband articles carried to [in] neutral bottoms is that the cargoes shall be released and the ships allowed to proceed. This rule cannot under the first sentence quoted be applied as to destination. What then is to be done with a cargo of non-contraband goods detained under the declaration? The same question may be asked as to conditional contraband cargoes.
[Page 271]The foregoing comments apply to cargoes destined for Germany. Cargoes coming out of German ports present another problem under the terms of the declaration. Under the rules governing contraband only goods owned by enemy subjects in enemy bottoms are subject to seizure and condemnation. Yet by the declaration it is purposed to seize and take into port all goods of enemy “ownership and origin”. The word “origin” is particularly significant. The origin of goods destined to neutral territory on neutral ships is not and never has been a ground for forfeiture except in case a blockade is declared and maintained. What then would the seizure amount to in the present case except to delay the delivery of the goods? The declaration does not indicate what disposition would be made of such cargoes if owned by a neutral or if owned by an enemy subject. Would a different rule be applied according to ownership? If so, upon what principles of international law would it rest? But upon what rule if no blockade is declared and maintained could the cargo of a neutral ship sailing out of a German port be condemned? If it is not condemned, what other legal course is there but to release it?
While I am fully alive to the fact that the methods of modern naval warfare, particularly in the use of the submarine for both defensive and offensive operations, have made the former means of maintaining a blockade a physical impossibility, I think that there should be some limit to “the radius of activity,” and especially so if this action by the belligerents can be construed to be a blockade. It would certainly create a serious state of affairs if an American vessel laden with a cargo of German origin should escape the British patrol only to be held up by a cruiser off New York and taken into Halifax.
These are some of the questions which suggest themselves from a hasty examination of the British and French declaration. It seems to me that the documents require careful scrutiny before action is taken by the Department as the whole matter of “blockade” under modern methods of naval warfare must be analyzed and some idea reached as to what is proper and right for belligerents to do and to what extent the previous rules should be modified.
Faithfully yours,
Respectfully submitted to the President. W. J. B[ryan]